The military commissions now taking place at Guantánamo Bay, Cuba, fall somewhere between a trial and a farce. The military officials involved in the process all seem committed to doing the best they can, but it is clear that they are struggling to make sense of a needlessly complicated and faulty system foisted on them for political purposes, not justice. Nobody knew what exactly was happening or how to react, from the moment when we human rights observers were left to fend for ourselves, to the military judge who buried his head in his hands several times as if to escape the commission.
The first sign of trouble was that the military had no idea how to handle independent observers. First, the military tried, half-heartedly, to limit journalists from interviewing us—even though we were all staying in the same quarters. Second, military officials were apparently unsure about what trial monitors do and tried to keep us from talking to prosecutors, court officials, and translators—precisely the people whose conduct we were supposed to be monitoring. They finally caved in, but only after days of encouraging us to go to the beach instead.
Basically, the U.S. military seemed confused about our very presence. Fair enough: They’ve never done this before.
Unfortunately, the confusion outside the courtroom was more than equaled by the disarray of the commission proceedings inside. For that, there’s no excuse.
The U.S. government has not adequately explained why these military commissions, with these rules, are being held in the first place. After all, U.S. federal courts and the U.S. military justice system are widely praised around the world, and they have demonstrated their ability to deal with cases involving terrorists, crimes against humanity, and war crimes. The ad hoc system put into place at Guantánamo violates the detainees’ fundamental right to a fair trial, and it is unlikely to provide convincing accountability for those who participated in crimes against humanity by attacking civilian targets in the United States, Afghanistan, or elsewhere around the world.
The commission hearings are being held in a large pink building atop a small peninsula jutting into Guantánamo Bay. Our military handlers told us the building had formerly housed a dental clinic. We found this an unlikely explanation, given the building’s turret-like tower on top and commanding location.
A mysterious grey cement building adjacent to the commission building was adorned with various high-security notices and multiple military guards. A row of port-a-potties were the only other structures atop the hill.
We were told that, as observers, we were limited to the military commission’s main room. This chamber, with seating for about 60 people, looked like a high school gym spruced up for the prom. A blue velvet sheet covered three walls. Flags and insignias of the five military services were displayed prominently, in particular behind the panel of judges. Cookie-cutter office furniture completed the image of a stage set. Computer monitors—apparently not attached to any computer—were set up before the commissioners, but removed after a couple of days.
All this had been done for the four detainees facing charges. They are represented by military defense counsel and, in one case, a civilian lawyer. There is plenty of security.
Human rights observers and a few journalists attended the hearings. Meanwhile, another 60 journalists followed the proceedings, delayed by a five-minute security lag, by video from an auditorium on a neighboring hill.
The hearings were punctuated by bouts of confusion. Three of the four detainees do not speak English well enough to participate without translation. One might have expected the commissions to have had expert interpreters on hand. Instead, the detainees could barely understand the discussion. At one point, as one detainee was apparently confessing that he was a member of Al-Qaeda and that his confession had not been coerced by the U.S. government, the commission heard instead that the U.S. government had not been coerced into stating it was a member of Al-Qaeda. The attempted confession was cut off, and nobody was sure what the detainee was saying or what the court record showed.
But even some of the native English speakers—particularly members of the commission—seemed confused about how the process should work. Only one member of the commission was a lawyer. It was obvious from the comments of the other members that they had difficulty with basic legal issues. Do the Geneva Conventions apply to an armed conflict? Can a suspect be found guilty for an action that wasn’t a crime at the time? Given the complexity of the cases, this level of confusion is troubling.
What’s more, the impartiality of the five members was cast in doubt. Several of them had served in Afghanistan during “Operation Enduring Freedom,” so they might reasonably be expected to harbor strong personal feelings about people accused of committing crimes against U.S. or coalition soldiers there. And then there was the revelation that the commission’s presiding officer is a long-time friend of the appointing authority, who works for the Bush administration and who brought the charges against the defendants in the first place.
Military defense lawyers challenged the commission for these (apparent) improprieties—but resolving these challenges is the responsibility of the appointing authority who selected the panel and the presiding officer in the first place, with full knowledge of their background and experience.
The biggest problem was the rules governing the commission. Unlike in U.S. courts-martial, defendants cannot appeal their case to a civilian court. The entire process—from trial to judgment to sentencing to final review—is entirely in the hands of the military. But independent review, whether in the U.S. justice system or others, is essential in order to correct mistakes at trial and ensure just verdicts and sentences. Other commission rules make it extremely difficult for defense lawyers to gather evidence to put together a defense. The prosecution can use evidence kept secret from the defendant as well as evidence obtained through the coercion of witnesses.
To his credit, the presiding officer struggled visibly to find answers to the tough procedural challenges posed by the defense lawyers. But there was little he could do: The problems raised were not of his making.
In defending the commissions, U.S. President George Bush’s administration has noted that military commissions have been part of American history since the Revolutionary War. The presidential order creating the military commissions in November 2001 was drawn from those established during World War II. But the order didn’t mention that such commissions always sought to apply the current rules governing courts-martial, and that courts-martial have changed a great deal for the better since the enactment of the Uniform Code of Military Justice in 1950.
Military lawyers tried to address the due process flaws in the 2001 order by issuing a series of rules and instructions. But instead of applying existing rules for courts-martial and deviating where necessary to reflect the difficulties of obtaining evidence in a war zone, the military basically started from scratch. Now they have dropped what they couldn’t finish in the laps of the military commissions.
So it seems that a few good men who are serious about doing their jobs properly are grappling with a bad system that was needlessly imposed on them. The existing rules do not create a level playing field. In other areas, rules of procedure are wholly lacking, leaving the participants to navigate their way through uncharted waters.
As a result, the international spotlight has now turned from the alleged crimes of the accused to the unfairness of U.S. justice. In one of the hearings, a panel member said that he believed that “actions speak louder the words.” Others on the commission agreed.
By the same token, the world will judge the United States at Guantánamo by the actions it takes to ensure fair trials, not by its rhetoric about how fair the commissions are. There is still much to be done. The travesty of Guantánamo Bay does not address the tragedy of 9/11.
Sam Zarifi was in Guantánamo Bay, Cuba, observing the military commissions.
